Kesha decision deserves criticism

Posted February 25, 2016bynews

Last Friday, a judge refused to grant a motion filed by pop star Kesha Sebert seeking temporary release from her contract with a man she says raped her.

The crux of the case is straightforward: Should Sebert, better known by her stage name Ke$ha, be effectively forced to work with a man who she says had systematically abused her? Does the language of a contract trump a woman’s right to safety and security?

In denying the singer’s request for an injunction, New York Supreme Court Justice Shirley Kornreich answered yes to both questions. Her ruling pointed to the unambiguity of the contract and said preserving the agreement was “the commercially reasonable thing” to do. Kesha’s career showed no signs of “irreparable harm,” Kornreich wrote, because it would still be possible for her to profitably record music under the terms of the contract.

Kornreich’s decision was, according to the letter of the law, correct. Kesha’s own lawyer acknowledged Sony Music Group and producer Lukasz “Dr. Luke” Gottwald had not breached any terms of the contract.

However, the technical and legal accuracy of the ruling doesn’t make it any less wrong. It’s a triumph of business over humanity: Pointing to the contractual terms as definitive instead of engaging with Kesha’s trauma seriously is both the easiest and least sensitive way out.

A more constructive and compassionate decision would examine the power dynamics in the case, which are stacked against Kesha. The music industry is male-dominated. The pattern of studio men controlling young female stars is sadly ingrained in the entertainment industry, according to an Atlantic article documenting its history. Then there’s Gottwald himself, a producer whose talent and connections at Sony made him powerful enough that Kesha feared challenging him would, at best, throw her career into chaos – as is indeed happening.

More broadly, the justice system is ill-equipped to treat victims of sexual violence. Study after study has shown that rape and sexual abuse are chronically underreported, and as many as 94 percent of women who experience such violence may not go to police. The ones who do often have to fight once to be believed by police, again to convince prosecutors to seek corroborating evidence, and a third time to earn credibility in a judge’s eyes. While some people claim such skepticism is necessary, false rape claims are exceedingly rare, resting between 2 and 8 percent, according to a study cited by multiple news outlets.

The power imbalance at play in Kesha’s case is by no means limited to her. In another recent example, the University of Tennessee and its athletic department came under fire in a federal lawsuit for policies that made students vulnerable to sexual assault and protected athletes from punishment. According to one affidavit in the case, the school’s football coach called one of his players “a traitor” for involvement in a rape case. The player’s offense? Helping a woman who said two other football players had sexually assaulted her.

Given this, Kornreich’s decision not to void Kesha’s contract with Gottwald is strikingly cold. When a woman with little power in an industry – and a society – famous for abusing control asks for help, we should take her seriously. Further, the suggestion her career hasn’t been harmed because she can still profit by making music with the man she says abused her misses the point completely. If Kesha’s story of rape and abuse is true, she may not want to see Gottwald or step foot inside buildings associated with him again. The potential for money doesn’t come close to negating that, nor healing her trauma.

The singer’s supporters are right to condemn the ruling. We do, too. If the justice system is unable or unwilling to judge such cases with compassion, structural overhaul is needed to rebalance power for victims of abuse.

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